945 F.

2d 713

UNITED STATES of America, Plaintiff-Appellee,

v.
William E. CAMPBELL, Defendant-Appellant.
No. 90-5625.

United States Court of Appeals,

Fourth Circuit.
Argued Oct. 31, 1990.
Decided Sept. 4, 1991.

Albert James Ahern, Jr., Alexandria, Va., argued for defendant-appellant.

John Thomas Martin, Asst. U.S. Atty., Alexandria, Va., argued (Henry E.
Hudson, U.S. Atty., on brief), for plaintiff-appellee.
Before WIDENER, Circuit Judge, CHAPMAN, Senior Circuit Judge, and
HADEN, Chief District Judge for the Southern District of West Virginia,
sitting by designation.
OPINION
WIDENER, Circuit Judge:

William Campbell appeals his convictions of conspiracy to distribute,

possession with intent to distribute, and distribution of cocaine in violation of
21 U.S.C. 841 & 846. He alleges that the district court erred in failing to
suppress evidence obtained during a search of his home conducted pursuant to
a search warrant. Campbell also raises the additional claim that he was unduly
prejudiced by the trial court's refusal to give an instruction defining reasonable
doubt at his trial. After reviewing the instructions given as a whole, we find no
merit in this latter contention.

However, we hold that the government's initial warrantless entry into

Campbell's residence was not justified by exigent circumstances and was
therefore in contravention of the Fourth Amendment. But this conclusion does
not end our inquiry. Suppression of the evidence obtained is appropriate only if

the illegal entry tainted the subsequently issued warrant. Such would not be the
case if the search warrant was based upon a source genuinely independent of
the prior illegal entry. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529,
101 L.Ed.2d 472 (1987). Accordingly, we remand for this determination.
3

The record reveals that after numerous prior smaller drug transactions, agents of
the Drug Enforcement Administration made arrangements with Curtis Bibb to
purchase a large quantity of cocaine on August 11, 1988. Special Agent Emile
Manara, acting undercover, spoke by telephone with Bibb and agreed to a
meeting to take place just following 3:00 p.m. in an Alexandria, Virginia
restaurant to agree on terms for the transaction. At this meeting, Manara and
Bibb tentatively agreed that Bibb would deliver the cocaine to Agent Manara in
installments of eight ounces, cash payment for which would be made upon
delivery. Bibb then suggested that they travel to a restaurant in Annandale,
Virginia where Agent Manara would wait while Bibb attempted to obtain
approval from his source and secure the cocaine. Bibb, under surveillance by
other D.E.A. agents, then drove to 3540 Ewell Street, Campbell's residence,
entered the residence, and then returned to the restaurant parking lot. Bibb
produced the cocaine, the sale was transacted, and Bibb was arrested.

After Bibb was given Miranda warnings, he told Agent Manara that Elizabeth
Campbell, William's wife, was the source of his cocaine; that he had acquired
the cocaine for this and other transactions from the Ewell Street residence; and
that nearly two additional pounds of cocaine were present in the basement. Bibb
further stated that he was unsure what Elizabeth Campbell would do with the
remaining cocaine if he did not return to the residence soon with the sale
proceeds. These events occurred following 3:00 p.m. that day.

Agent Manara and the other law enforcement officers then decided to go to the
Ewell Street residence, to which they had seen Bibb go, and where they thought
Bibb had obtained his cocaine. At approximately 4:00 p.m., one hour after
Bibb's arrest and statement, the agents assembled at the Ewell Street residence.
Two of the ten or so agents present, without announcing themselves, knocked
at the door with no result. Agent Manara then approached the door, knocked
forcefully, and announced himself as a federal agent. When no reply was
forthcoming, he kicked open the door and entered the residence. Once inside
the residence, the agents encountered Elizabeth Campbell. She was wearing
gloves and a pullover dress that was covered with what was later determined to
be cocaine residue. The agents then made a protective sweep of the rooms,
closets, seat cushions, and basement of the residence for other persons and
weapons that might compromise their safety. During this protective sweep, the
agents observed a large quantity of drugs and drug paraphernalia, and an

answering machine cassette. Following this sweep, consent to a search was

requested and refused.
6

While some of the agents waited on the premises, others applied for and were
issued a warrant to conduct a search for illegal drugs and related paraphernalia
and documents at the residence. Based in part upon evidence obtained from this
residence, William Campbell was arrested, charged, and convicted of the
charges as related above.

Campbell contends that the district court erred in refusing to suppress the
evidence discovered at his residence in the initial entry and later search.
Specifically, he argues that all of the evidence obtained should have been
suppressed because the officers' initial entry into the house was in violation of
his rights under the Fourth Amendment. The government, however, contends
first, that exigent circumstances justified the initial warrantless entry, protective
sweep and securing of the premises; and, second, that the subsequent search
and seizure of items in the premises was valid because done pursuant to a
search warrant based upon an independent source.

Warrantless entries into a residence are presumptively unreasonable. United

States v. Turner, 650 F.2d 526, 528 (4th Cir.1981) (citing Payton v. New York,
445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)). However, an
exception to the warrant requirement is made where certain exigent
circumstances exist. Where police officers have probable cause to believe that
evidence of illegal activity is present and reasonably believe that it may be
destroyed or removed before they can secure a warrant, exigent circumstances
exist to justify a warrantless entry. Turner, 650 F.2d at 528. Exigent
circumstances, therefore, means that there is insufficient time to obtain a
warrant.

In this case, the government's stated exigency was the possibility that Elizabeth
Campbell might destroy evidence of illegal narcotics activity located at the
Ewell Street residence, before the officers would be able to obtain a search
warrant. The only evidence offered by the government on this point is the
statement of Bibb when arrested that if he didn't return promptly, he didn't
know what Mrs. Campbell would do with the contraband remaining on the
premises. Despite this knowledge, the fact remains that the agents delayed for
one hour without making any attempt to obtain a search warrant. Further, there
was no showing that obtaining a warrant initially would have been difficult or
time consuming. In fact, the record indicates that almost certainly there was
probable cause, based on other information in the agents' possession, to obtain a
search warrant for the residence prior to August 11, 1988, a finding we should

not now make, however. Murray, 487 U.S. at 543, 108 S.Ct. at 2536. Finally, if
there was any concern about destruction of additional evidence in the
immediate aftermath of the arrest of Bibb, that was not demonstrated by the
wait of an hour. These facts, and especially the delay of one hour, simply do not
support the finding of exigent circumstances to justify the warrantless entry.*
The government also contends, however, that even if the initial entering and
securing of the Ewell Street residence was in violation of Campbell's Fourth
Amendment rights, the subsequent search of these premises and the evidence
obtained therein would be admissible because the later search pursuant to a
warrant was based upon an independent source. See Murray v. United States,
487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1987); Segura v. United
States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
10

In Murray, the Court held that evidence seized pursuant to a subsequently

issued warrant, although initially discovered during a search following an
illegal entry, would be admissible provided that the later seizure, pursuant to a
warrant, was genuinely independent of the earlier illegal activity. Murray, 487
U.S. 533, 542, 108 S.Ct. 2529, 2535, 101 L.Ed.2d 472. The Court commented
that the later search and seizure would not have been independent if "... the
agents' decision to seek the warrant was prompted by what they had seen during
the initial entry, or if information obtained during that entry was presented to
the Magistrate and affected his decision to issue the warrant." Murray, 487 U.S.
at 542, 108 S.Ct. at 2535-36. The Court went on to indicate that the
determination of the existence of these factors should be supported by adequate
findings by the district court. Murray, 487 U.S. at 543, 108 S.Ct. at 2536.

11

We note that the affidavit in support of the search warrant makes no mention of
evidence obtained in the illegal entry. However, the record is incomplete as to
whether the agents' decision to secure the warrant was prompted by what was
observed at the residence. The district court made no findings on these points,
and did not specifically address the independent source issue because of its
finding that exigent circumstances justified the initial entry. Accordingly, we
remand for findings as to whether the subsequent search of Campbell's
residence pursuant to the search warrant was, in fact, an independent source of
the challenged evidence in the sense described above. If there was an
independent source, the district court will again decline to suppress the
evidence seized and will decline to set aside its conviction; if, on the other
hand, there was no independent source, the district court will enter its order
suppressing the evidence in question and vacate the conviction and award a
new trial if the government be so advised.

12

REMANDED WITH INSTRUCTIONS.

The many events following 3:00 p.m. the afternoon of August 11th may make it
seem that the wait of one hour is questionable. However, we must remember
that the times mentioned are not exact and that the court (A. 110) and the
defendant (Brief p. 2) agree that the wait was about an hour. That finding of the
district court is not clearly erroneous